Pritchard v Harris Teeter, Inc., 155 NC App 777 (01-1375) 01/21/2003

Appeal by plaintiff Edna Pritchard from judgment entered 30 May 2001 by Judge Michael E. Helms in Forsyth County Superior Court. Heard in the Court of Appeals 21 August 2002.

    Narron & Holdford, P.A., by William H. Holdford and Ben L. Eagles, for plaintiff appellant.

    Smith Helms Mulliss & Moore, L.L.P., by Stephen P. Millikin and Lisa M. Kaminski, for Harris Teeter defendant appellee.

    Bennett, Guthrie, & Dean, PLLC, by Rodney A. Guthrie and Kevin     J. Williams, for Wells Real Estate Fund VII, L.P., defendant     appellee.

    McCULLOUGH, Judge.

    Plaintiff Edna Pritchard appeals the trial court's grant of directed verdict in favor of defendants Harris Teeter and Wells Management Company (Harris Teeter's landlord). On 16 November 1999, plaintiff filed a complaint against defendants alleging negligence by defendants in maintaining Harris Teeter's walkways. Mr. Pritchard made a claim for loss of consortium arising fromplaintiff's injuries. Defendants answered, denied negligence, and alleged that plaintiff's recovery was barred by her contributory negligence. On 27 October 2000, defendant Wells Management Company moved for summary judgment; defendant Harris Teeter moved for summary judgment on 1 November 2000. The trial court denied both motions on 22 December 2000. The case proceeded to trial by jury at the 30 April 2001 Civil Session of Forsyth County Superior Court.
    The evidence showed that on 25 July 1999, plaintiff was visiting her sister in Clemmons, North Carolina, and went grocery shopping at Harris Teeter with her sister and her niece around midday. Plaintiff drove to Harris Teeter, where she had shopped four to five times previously. It was warm and sunny, and there were no obstructions to plaintiff's view.
    On this visit, plaintiff parked her car along the sidewalk in front of some other stores that were adjacent to Harris Teeter. While making her way to the front entrance of the store, plaintiff began walking on a cobblestone sidewalk. Between the cobblestone sidewalk and the asphalt parking lot was a concrete area which extended out from the sidewalk and ended immediately adjacent to the parking lot. Inset into the concrete area was a cart stop, which was parallel to the front of the grocery store and kept shopping carts from rolling into cars or other objects in the parking lot. The cart stop was between ¾ and . of an inch deep, 19 feet long, and 8 inches wide and the indentation was defined by a solid yellow painted line. The cart stop was located severalfeet away from the curb of the sidewalk and lay between a brick patterned surface and the concrete sidewalk to the left and to the right of the front doors of Harris Teeter. When customers were facing Harris Teeter's front entrance, they could also see a bench to the right of its front doors. The bench featured an advertisement and was placed in that location by Harris Teeter.
    When asked to describe the events immediately preceding her fall, plaintiff answered in the following manner:
        Q.    As you proceeded up the sidewalk, what was happening? Where was your attention?

        A.    Just walking along the sidewalk to go into the store to make our purchases. There was --

        Q.    How did the sidewalk appear to you?

        A.    It was a bright, sunny day. It appeared to be smooth and flat. It did have a yellow line.

        Q.    Were you at all concerned about the yellow line?

        A.    No. It looked like a yellow line on a flat surface. And I have not seen a yellow line that I could not step on. You step on yellow lines on walkways and in all -- all kinds of situations. It's just a flat yellow line that you can step on. You're cautious about an area that may be beyond but not the line itself.

        Q.    What happened as you were walking toward the front entrance to the Harris Teeter that morning?

        A.    I was on the side of the -- on the side toward the yellow line. My niece was to the right of me and we were walking on the sidewalk. My sister was slightly behind. And, as we were approaching, I saw the bench that was on the right-hand side of the store. And I just moved slightly to the left thinking that she would come and the three of us would walk abreast. And it was at that time my left foot went into the indentation and caused me to stumble and fall on the brick sidewalk on my right hip.

    Plaintiff later testified that she noticed the yellow painted line as she approached the entrance to Harris Teeter, but did not see the indentation. She believed the line was painted on a flat surface between the cobblestone and cement; however, she admitted that she did not look directly at the yellow line or surrounding pavement when making that assessment. Plaintiff further testified there were no shadows in the indentation where the cart stop existed. She stated she could not have seen the indentation had she not stopped, leaned over, and looked at it.
    Plaintiff called a total of ten witnesses, including Dr. John Cocknell, whom she tendered as an expert in pedestrian falls and their causes. Dr. Cocknell testified about his investigation into plaintiff's fall, but was not permitted to testify regarding what plaintiff could perceive on the day of the accident.
    Defendants' motion for directed verdict was granted at the close of plaintiff's evidence. The trial court specifically stated it was granting defendants' motion because plaintiff was contributorily negligent as a matter of law; the trial court did not rule that plaintiff failed to prove negligence on the part of either defendant. From the trial court's judgment entered 30 May 2001, plaintiff appealed.
    On appeal, plaintiff argues the trial court committedreversible error by granting defendants' motion for directed verdict and entering judgment in defendants' favor because the evidence failed to establish that plaintiff was contributorily negligent as a matter of law. For the reasons set forth herein, we disagree with plaintiff's arguments and affirm the judgment of the trial court.
            A motion by a defendant for a directed verdict under G.S. 1A-1, Rule 50(a) tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. On such a motion, the nonmoving party's evidence must be taken as true and considered in the light most favorable to the plaintiff, giving plaintiff the benefit of every reasonable inference to be drawn therefrom. A directed verdict for the defendant is not properly allowed unless it appears as a matter of law that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish.

Wellmon v. Hickory Construction Co, 88 N.C. App. 76, 79, 362 S.E.2d 591, 593 (1987), disc. review denied, 322 N.C. 115, 367 S.E.2d 921 (1988). To establish a valid claim for negligence, plaintiff must “establish each of the following elements: '(1) the standard of care [duty owed]; (2) breach of the standard of care; (3) proximate causation; and (4) damages.” Clark v. Perry, 114 N.C. App. 297, 304-05, 442 S.E.2d 57, 61 (1994) (quoting Lowery v. Newton, 52 N.C. App. 234, 237, 278 S.E.2d 566, 570, disc. review denied, 303 N.C. 711, and reconsideration denied, 304 N.C. 195, 291 S.E.2d 148 (1981)). A motion for directed verdict in slip and fall cases should be granted when
        plaintiff's evidence, considered in the lightmost favorable to [her], together with inferences favorable to [her] that may be reasonably drawn therefrom, so clearly establishes the defense of contributory negligence that no other conclusion can reasonably be drawn.

Peeler v. Railway Co., 32 N.C. App. 759, 760, 233 S.E.2d 685, 686 (1977). See also Wilburn v. Honeycutt, 135 N.C. App. 373, 375, 519 S.E.2d 774, 775 (1999).
    In North Carolina, “a landowner has a duty to any lawful visitor on his property 'to take reasonable precautions to ascertain the condition of [his] property and to either make it reasonably safe or give warnings as may be reasonably necessary to inform . . . of any foreseeable danger.'” Hussey v. Seawell, 137 N.C. App. 172, 175, 527 S.E.2d 90, 92 (2000) (quoting Lorinovich v. K Mart Corp., 134 N.C. App. 158, 161, 516 S.E.2d 643, 645, cert. denied, 351 N.C. 107, 541 S.E.2d 148 (1999)). However, “there is no duty to warn an invitee of a hazard obvious to any ordinarily intelligent person using [her] eyes in an ordinary manner, or one of which the plaintiff had equal or superior knowledge.” Branks v. Kern, 320 N.C. 621, 624, 359 S.E.2d 780, 782 (1987).
    “[T]he mere existence of a condition which causes an injury is not negligence per se, and the occurrence of the injury does not raise a presumption of negligence.” Spell v. Contractors, 261 N.C. 589, 592, 135 S.E.2d 544, 547 (1964). See also Newsom v. Byrnes, 114 N.C. App. 787, 788, 443 S.E.2d 365, 367 (1994). Thus, even if a defendant is negligent, “[t]he doctrine of contributory negligence will preclude a defendant's liability if the visitor actually knew of the unsafe condition or if a hazard should have been obvious to a reasonable person.” Allsup v. McVille, Inc., 139 N.C. App. 415, 416, 533 S.E.2d 823, 824 (2000), aff'd, 353 N.C. 359, 543 S.E.2d 476 (2001). “As a general rule, one who has capacity to understand and avoid a known danger and fails to take advantage of that opportunity . . . is chargeable with contributory negligence, which will bar recovery.” Presnell v. Payne, 272 N.C. 11, 13, 157 S.E.2d 601, 602 (1967).
    Plaintiff fell on an irregular portion of the area outside Harris Teeter. Our Supreme Court has stated that “[s]light depressions, unevenness and irregularities in outdoor walkways, sidewalks and streets are so common that their presence is to be anticipated by prudent persons.” Evans v. Batten, 262 N.C. 601, 602, 138 S.E.2d 213, 214 (1964). When determining whether a plaintiff was contributorily negligent,
        [t]he facts must be viewed in their totality to determine if there are factors which make the existence of a defect in a sidewalk, in light of the surrounding conditions, a breach of the defendant's duty and less than 'obvious' to the plaintiff. Such factors may include the nature of the defect in the sidewalk, the lighting at the time of the accident, and whether any other reasonably foreseeable conditions existed which might have distracted the attention of one walking on the sidewalk.

Pulley v. Rex Hospital, 326 N.C. 701, 706, 392 S.E.2d 380, 384 (1990). See also Frendlich v. Vaughan's Foods, 64 N.C. App. 332, 307 S.E.2d 412 (1983) (plaintiff was contributorily negligent as a matter of law when she did not see an open and obvious step down infront of a store); and Watkins v. Raleigh, 214 N.C. 644, 200 S.E. 424 (1939) (plaintiff was contributorily negligent as a matter of law when she stepped into a hole in a concrete sidewalk).
    Here, the cart stop in front of Harris Teeter was in plain view, and there were no obstacles preventing plaintiff from noticing it. The accident occurred in broad daylight, and plaintiff was not carrying anything in her arms. There were no construction defects in the cart stop, nor was it obscured by debris. Harris Teeter called attention to the cart stop by painting a yellow line on it, and plaintiff admitted she saw the line and knew yellow was a cautionary color, but failed to comprehend its significance before she fell. Although plaintiff mistakenly believed the surfaces were the same level, her contention does not render an open and obvious condition a hidden or latent defect. See Garner v. Greyhound Corp., 250 N.C. 151, 108 S.E.2d 461 (1959).
    Plaintiff also contends the bench near the entrance to Harris Teeter distracted her and diverted her attention from the cart stop. Generally,
        [w]hen a plaintiff does not discover and avoid an obvious defect, that plaintiff will usually be considered to have been contributorily negligent as a matter of law. However, where there is some fact, condition or circumstance which would or might divert the attention of an ordinarily prudent person from discovering or seeing an existing dangerous condition, the general rule does not apply.

Price v. Jack Eckerd Corporation, 100 N.C. App. 732, 736, 398 S.E.2d 49, 52 (1990) (citations omitted). Here, the bench was notin plaintiff's path and did not obstruct her view of the cart stop. While plaintiff testified that she noticed the bench sometime before she fell, there is no evidence in the record that plaintiff was distracted from seeing the cart stop by any advertising on the bench. There is also no evidence that defendants placed the bench in front of the store to divert the attention of its customers. Merely seeing an object does not qualify that object as a “distraction.” See Allsup, 139 N.C. App. 415, 533 S.E.2d 823; and Norwood v. Sherwin-Williams Co., 303 N.C. 462, 279 S.E.2d 559 (1981), overruled in part by Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998), reh'g denied, 350 N.C. 108, 533 S.E.2d 467 (1999). However, even if the bench was deemed a distraction, plaintiff's own testimony indicates that her thoughts were to move over so her sister could walk next to her and her niece, instead of slightly behind.
    We conclude plaintiff was contributorily negligent as a matter of law because the cart stop was an open and obvious condition. As such, the trial court correctly granted directed verdict in favor of defendants because plaintiff could not prove her case. The decision of the trial court is
    Affirmed.
    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).

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